State v. Garber, 2004 SD 2 (S.D. 1/7/2004), 22693

• Decision Date: 07 January 2004
• Docket Number: No. 22693,22693
• Citation: 2004 SD 2
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. DAMIEN GARBER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 1

2004 SD 2

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. DAMIEN GARBER, Defendant and Appellant.

No. 22693

Supreme Court of South Dakota.

Considered on briefs on November 17, 2003

Opinion Filed January 7, 2004

Appeal from the Circuit Court of the First Judicial Circuit Union County, South Dakota, Honorable Glen W. Eng Judge.

LAWRENCE E. LONG, Attorney General, SHERRI SUNDEM WALD, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

ROBERT TIEFENTHALER, Sioux City, Iowa, Attorney for defendant and appellant.

GILBERTSON, Chief Justice.

[¶ 1.] After Damien Garber (Garber) pleaded guilty to Possession of a Controlled Substance in violation of SDCL 22-42-5, he was sentenced to ten years in the South Dakota State Penitentiary. On appeal, Garber raises the following issues: (1) whether the right to remain silent extends through sentencing; (2) whether his sentence was grossly disproportionate; (3) whether he should be re-sentenced by a different judge; and (4) whether his attorney's failure to advise him to remain silent during sentencing amounted to ineffective assistance of counsel. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On June 21, 2002, Union County Deputy Sheriff Eric Holmquist initiated the traffic stop of the vehicle in which Garber was a passenger because it had an unlit license plate and the vehicle appeared to be operated erratically. While speaking with the driver of the vehicle, Loni Vaselaar (Vaselaar), Deputy Holmquist noticed the smell of alcohol coming from the vehicle. Vaselaar admitted to drinking two beers. After asking Vaselaar to perform various field sobriety tests, Deputy Holmquist asked Vaselaar to stick out his tongue. Vaselaar complied and Deputy Holmquist observed a thick, white coating on his tongue, a sign that often indicated marijuana use in the deputy's experience. When questioned, Vaselaar admitted to smoking marijuana that afternoon but denied the presence of any marijuana in the vehicle. Deputy Holmquist subsequently placed Vaselaar under arrest for ingestion of a controlled substance.

[¶ 3.] Shortly thereafter, Deputy Mike Palmer arrived at the scene to assist Deputy Holmquist. Deputy Palmer instructed Garber to get out of the back seat and asked him if he had been drinking. Garber replied that he had been drinking and that he did not have a driver's license. Garber also admitted he was drinking when the vehicle was pulled over and that there was an open beer can in the car. When asked, Garber denied the presence of any drugs in the vehicle and stated he had not smoked marijuana.

[¶ 4.] After placing Vaselaar under arrest, Deputy Holmquist spoke with the other passenger in the car, Jonna Erickson (Erickson). Deputy Holmquist noticed the red and glassy appearance of Erickson's eyes and smelled the odor of alcohol on her breath. When questioned, Erickson denied having anything to drink or using any type of drug. Deputy Holmquist then placed Erickson in Deputy Palmer's patrol car.

[¶ 5.] A subsequent search of the vehicle revealed a half-full can of beer where Garber had been sitting and a partially consumed can of beer where Erickson had been sitting. Both passengers were promptly issued citations for having an open container in a motor vehicle. Erickson, who was nineteen at the time, also received a citation for underage consumption. Because Vaselaar's vehicle was to be towed, Deputy Palmer gave Garber and Erickson a ride back to North Sioux City, South Dakota.

[¶ 6.] After Deputy Palmer, Garber, and Erickson departed, Deputy Holmquist began an inventory search of the vehicle. Upon opening the car's trunk, Deputy Holmquist immediately noticed the odor of marijuana and identified the smell as coming from a bag filled with clothes. Deputy Holmquist found a large plastic bag under the clothing. The bag, later identified as belonging to Garber, contained large quantities of marijuana and methamphetamine. A subsequent analysis determined that the bag contained one pound of marijuana and approximately 110 grams of methamphetamine. Deputy Holmquist also discovered an electronic scale in the trunk.

[¶ 7.] Deputy Holmquist immediately radioed Deputy Palmer and directed him to place Garber and Erickson under arrest. After returning to Vaselaar's vehicle, the deputies placed Garber in the back seat of Deputy Holmquist's car with Vaselaar, and placed Erickson in Deputy Palmer's vehicle. Alone in the patrol car, Garber and Vaselaar began to speak with one another. Unbeknownst to them, a microphone in Deputy Holmquist's car recorded the conversation, including Garber's remark that "`I didn't think they were ever going to find that," and his observation that "You know, you can only do this so long before something happens."

[¶ 8.] Garber, Vaselaar, and Erickson were all placed under arrest. A sample of Garber's urine tested positive for methamphetamine. Garber was charged with two counts of Possession of a Controlled Substance in violation of SDCL 22-42-5, Possession of Marijuana contrary to SDCL 22-42-6, Ingestion pursuant to SDCL 22-42-15, Possession of Drug Paraphernalia in violation of SDCL 22-42A-3, and Open Container in a Motor Vehicle contrary to SDCL 35-1-91.

[¶ 9.] On August 26, 2002, Garber appeared before Judge McMurchie and pleaded guilty to one count of Possession of a Controlled Substance, methamphetamine.

[¶ 10.] On December 17, 2002, Garber was brought before Judge Eng for sentencing.¹ Judge Eng told Garber he had the right to request sentencing from Judge McMurchie, but Garber indicated he wished to go forward with sentencing at that time. Judge Eng subsequently entered a judgment sentencing Garber to ten years in the South Dakota State Penitentiary.

[¶ 11.] Garber's motion to vacate sentence and motion to transfer were denied. Garber now appeals and raises the following issues:

1. Where a Defendant has entered a plea of guilty, does that Defendant's privilege against self-incrimination continue through the sentencing hearing.

2. Whether Garber's sentence to ten years in the penitentiary for possession of a controlled substance was grossly disproportionate.

3. Whether Garber should be re-sentenced by a different trial judge.

4. Whether counsel's failure to advise Garber to exercise his right to remain silent during sentencing amounted to ineffective assistance of counsel.

Affirmed.

STANDARD OF REVIEW

[¶ 12.] We review Garber's argument that the right to remain silent, pursuant to Fifth Amendment of the Constitution and Article VI, § 9 of the South Dakota constitution, extends to sentencing under the de novo standard of review.

[¶ 13.] We give "great deference to sentencing decisions made by trial courts." State v. Milk, 2000 SD 28, ¶10, 607 NW2d 14, 17 (citing State v. Gehrke, 491 NW2d 421, 422 (SD 1992) (citation omitted)). As we reiterated in Milk:

Absent specific authority, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence; rather, in applying the Eighth Amendment the appellate court decides only whether the sentence under review is within constitutional limits. In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence in not constitutionally disproportionate.

Id. (quoting Gehrke, 491 NW2d at 423). Given this level of deference, we generally uphold sentences within the statutory maximum. State v. Stahl, 2000 SD 154, ¶5, 619 NW2d 870, 871-72 (citation omitted). Accordingly, appeals attacking the proportionality of a sentence will rarely be successful. State v. Bonner, 1998 SD 30, ¶14, 577 NW2d 575, 579 (citation omitted).

ANALYSIS AND DECISION

[¶ 14.] 1. Where a Defendant has entered a plea of guilty, does that Defendant's privilege against self-incrimination continue through the sentencing hearing.

[¶ 15.] Garber pleaded guilty to one count of Possession of Controlled Substance before Judge McMurchie and was sentenced by Judge Eng to ten years in the South Dakota State Penitentiary, the maximum penalty for violation of SDCL 22-42-5. Garber contends, however, that Judge Eng violated his Fifth Amendment right to remain silent during the sentencing hearing, and, therefore, his sentence should be overturned. We have not squarely addressed whether a defendant's right to remain silent extends to the sentencing phase where that defendant has entered a plea of guilty.

[¶ 16.] Garber believes Judge Eng violated his Fifth Amendment right to remain silent when Judge Eng questioned him about the incident that led to his arrest. The relevant portions of the exchange follow:

THE COURT: Thank you. Mr. Garber, if you'd please stand. Do you have any comments you'd like to make?

GARBER: Yes, I would like to apologize to the State of South Dakota for having possession of methamphetamine in my body. I know that was wrong. I'd like to apologize to society in general for any wrongdoing that, you know, I did or any harm that I did to any other person by having methamphetamine in my body. I know it was wrong. I feel I'm on the right path and I really want to change my life around. I think I can do that. I have the ability to do that without having to go away for however long you sentence me. I really want a chance to work this out through probation. That's all.

. . . . . .

THE COURT: Mr. Garber, what happened that day?

GARBER: Basically what happened is Mr. Vaselaar came over to my house. I thought we were going to go fishing. He had some meth, which we smoked . . . . I knew he had maybe a little in his pocket, and then we got pulled over on the way up to Sioux Falls. . . .

[¶ 17.] At this point, Judge Eng read from the police report, including Garber's comments "I didn't think they were ever going to find that" and "You know, you can only do this for so long before something...