State v. Garza

• Decision Date: 24 September 2014
• Docket Number: No. 26807.,26807.
• Citation: 854 N.W.2d 833
• Court: South Dakota Supreme Court
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Jose Angel GARZA, Defendant and Appellant.

854 N.W.2d 833

STATE of South Dakota, Plaintiff and Appellee

v.Jose Angel GARZA, Defendant and Appellant.

No. 26807.

Supreme Court of South Dakota.

Considered on Briefs April 28, 2014.

Decided Sept. 24, 2014.

Marty J. Jackley, Attorney General, Bethany L. Erickson, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Cheri Scharffenberg, Olson, Waltner & Scharffenberg, LLP, Tea, South Dakota, Attorneys for defendant and appellant.

Opinion

GILBERTSON, Chief Justice.

[¶ 1.] Defendant Jose Garza was convicted of first-degree arson and first-degree felony murder in a single trial for intentionally setting fire to an occupied structure and the resulting death of an unidentified victim in the fire. Arson served as the underlying felony to support the felony murder charge. Garza was given concurrent life sentences without parole for each conviction. The circuit court denied Garza's motion to correct an illegal sentence, rejecting his claim that the concurrent sentences violated the Double Jeopardy Clause. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] The underlying facts of this case were described in State v. Garza, 1997 S.D. 54, ¶¶ 2–4, 563 N.W.2d 406 :

At approximately 9:00 a.m. on the morning of February 24, 1995, Jose Sanchez (Sanchez) hosted a party at his apartment located at 231 South Spring in Sioux Falls, South Dakota. Throughout the morning and early afternoon hours, a large amount of alcohol was consumed by the occupants and guests. Garza arrived at Sanchez' apartment around 4:00 p.m. and found the majority of the participants intoxicated. Garza consumed alcohol with the other guests after his arrival.

Later, Ansellmo Montinegro (Montinegro) and Garza had an altercation. After Montinegro broke the strings of a guitar, Garza grabbed it and broke it further. Another participant at the party attempted to stop Garza and a further altercation ensued. Next, the evidence showed that Garza went to the stove, turned on the gas, lit all four burners, and threatened he could burn down the house. Also, Garza was observed putting his lighter up to the fuse box in the apartment, but the fuse box door was closed by another person at the party to deter this act.

At approximately 9:30 p.m., Garza left the party. Garza was later identified as having purchased forty-five cents worth of gasoline at a nearby 7–11 store at 11:00 p.m. Within twenty minutes of his purchase, the apartment building at 231 South Spring was on fire. All of the occupants escaped the burning building, except for John Doe, who died of carboxyhemoglobin poisoning.

[¶ 3.] The State charged Garza with one count of first-degree felony murder, with arson as the underlying felony, and one count of first-degree arson. SDCL 22–16–4 (1995) ; SDCL 22–33–1 (1995). The jury found Garza guilty of both offenses, and he received a life sentence without parole for each. Garza raised four issues on direct appeal, but did not challenge his sentence as violating the Double Jeopardy Clause. Garza, 1997 S.D. 54, ¶ 5, 563 N.W.2d at 408. This Court affirmed his conviction on all issues raised on direct appeal. Id. ¶ 35, 563 N.W.2d at 413. In November of 2011, Garza filed a motion to correct illegal sentence, alleging that the imposition of sentences for both felony murder and arson violated the Double Jeopardy Clause. The trial court issued an order denying the motion. Garza filed a timely appeal to this Court, alleging that the trial court erred in denying his motion to correct illegal sentence.

ANALYSIS AND DECISION

[¶ 4.] 1. Whether this Court has jurisdiction over an appeal from an order denying a motion to correct illegal sentence.

[¶ 5.] As an initial matter, the State argues that this Court does not have jurisdiction over this matter because SDCL 23A–32–2 gives a defendant the right to appeal only from a final judgment of conviction. We squarely rejected this same argument in State v. Kramer and held that challenges to a trial court's order granting or denying a motion to correct an illegal sentence under SDCL 23A–31–1 (Rule 35) may properly come before this Court on appeal. 2008 S.D. 73, ¶¶ 7–8, 754 N.W.2d 655, 657. See also State v. Tibbetts, 333 N.W.2d 440, 441 (S.D.1983) (allowing appeal of circuit court's denial of a request to correct an illegal sentence under SDCL 23A–31–1 ). As we noted in Kramer, this Court has consistently reviewed these challenges to the legality of a sentence. 2008 S.D. 73, ¶ 8, 754 N.W.2d at 657 (citing State v. Sieler, 1996 S.D. 114, 554 N.W.2d 477 ; State v. Moon, 514 N.W.2d 705 (S.D.1994) ; State v. Thomas, 499 N.W.2d 621 (S.D.1993) ; In re Application of Grosh, 415 N.W.2d 824 (S.D.1987) ). Accordingly, we reject the State's argument that we should decline to consider Garza's appeal.

[¶ 6.] However, Garza asserts that the proper remedy in this case would be to vacate both the conviction and sentence for first-degree arson, leaving the conviction for first-degree felony murder intact. South Dakota law authorizes a court to provide a more limited remedy. SDCL 23A–31–1 (Rule 35). Under that rule, a court may “correct an illegal sentence at any time,” but not an improper conviction. Id. (emphasis added). See also Kramer, 2008 S.D. 73, ¶ 7, 754 N.W.2d at 657 (“A defendant's motion to correct an illegal sentence does not permit a challenge to the underlying conviction.”).¹ Garza's challenge to the underlying conviction is not cognizable under the procedural mechanism used in this case. Accordingly, our review is limited to whether the sentence in this case was illegal and should be vacated.

[¶ 7.] 2. Whether imposition of sentences for felony murder and the underlying felony of arson violates the constitutional prohibition against double jeopardy.

[¶ 8.] Garza argues that the South Dakota Legislature did not intend to authorize multiple punishments for the single act of burning a building. Specifically, he argues that the Legislature intended arson and felony murder to be treated and punished as a single offense. Garza contends that “the murder charge is really ‘aggravated arson’—arson plus a resulting death.” Consequently, he asserts that imposing multiple punishments for his single act violated the Double Jeopardy Clause. We disagree.

[¶ 9.] Because Garza alleges constitutional violations, raising issues of legislative intent and statutory interpretation, we review his claims under the de novo standard.

State v. Long Fox, 2013 S.D. 40, ¶ 11, 832 N.W.2d 55, 58 ; Kramer, 2008 S.D. 73, ¶ 11, 754 N.W.2d at 658.

[¶ 10.] The double jeopardy prohibition in the Fifth Amendment to the United States Constitution, and Article VI, Section 9, of the South Dakota Constitution, “protect[s] against three types of governmental abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.” State v. Johnson, 2007 S.D. 86, ¶ 12, 739 N.W.2d 1, 6 (quoting State v. Lafferty, 2006 S.D. 50, ¶ 4, 716 N.W.2d 782, 784 ). See also Jones v. Thomas, 491 U.S. 376, 380–81, 109 S.Ct. 2522, 2525, 105 L.Ed.2d 322 (1989). In the first two contexts—a second prosecution subsequent to acquittal or conviction—the United States Supreme Court has consistently found a violation of the Double Jeopardy Clause unless each of the charged offenses “requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) (citing Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 422, 55 L.Ed. 489 (1911) ). If such proof is required, then the single act may be an offense against two statutes and “an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” Id. (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (Mass.1871) ).

[¶ 11.] The analysis is different, however, in the context of multiple punishments for the same criminal act. When “it is not contended that [a defendant's] right to be free from multiple trials for the same offense has been violated[,]” but rather where cumulative sentences are imposed in a single trial, “the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 365–66, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). Accordingly, “[t]he question of what punishments are constitutionally permissible is no different from the question of what punishments the Legislative Branch intended to be imposed.” Id. at 368, 103 S.Ct. at 679 (quoting Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275 (1981) ); State v. Simons, 313 N.W.2d 465, 467 (S.D.1981) (quoting Albernaz, 450 U.S. at 344, 101 S.Ct. at 1145 ). While a question of multiple prosecutions, then, is a constitutional question that must be resolved according to the Blockburger test, the determination of whether the same criminal act can be punished under two separate statutes in one trial is a question of state law to be determined in state courts. See Hunter, 459 U.S. at 368, 103 S.Ct. at 679 (citing O'Brien v. Skinner, 414 U.S. 524, 531, 94 S.Ct. 740, 743, 38 L.Ed.2d 702 (1974) ) (acknowledging that the United States Supreme Court was bound by the Missouri Supreme Court's conclusion that Missouri statutes authorized multiple punishments for one criminal act). Thus, the primary issue before this Court is whether the South Dakota Legislature intended first-degree arson and felony murder to be separately punishable offenses, not whether they constitute the same offense under the federal formulation of the Blockburger test.

[¶ 12.] We have an “[e]stablished double jeopardy jurisprudence [, which] confirms that the Legislature may impose multiple punishments for the same conduct without violating the Double Jeopardy Clause if it clearly expresses its intent to do so.” State v. Deneui, 2009 S.D. 99, ...