State v. Kari, 052621 SDSC, 29163-a-PJD
| Opinion Judge | DEVANEY, JUSTICE |
| Party Name | STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. MELISSA LAURA KARI, Defendant and Appellant. |
| Attorney | JASON R. RAVNSBORG Attorney General ANN C. MEYER Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee. JANET C. OLSON Sioux Falls, South Dakota Attorney for defendant and appellant. |
| Judge Panel | JENSEN, Chief Justice, and KERN, Justice, and GILBERTSON, Retired Chief Justice, concur. SALTER, Justice, MYREN, Justice, |
| Case Date | May 26, 2021 |
| Court | South Dakota Supreme Court |
CONSIDERED ON BRIEFS NOVEMBER 16, 2020
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE NATALIE DAMGAARD Judge
JASON R. RAVNSBORG Attorney General ANN C. MEYER Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
JANET C. OLSON Sioux Falls, South Dakota Attorney for defendant and appellant.
DEVANEY, JUSTICE
[¶1.] In this appeal from a revocation of a suspended sentence, the defendant argues that the sentencing court was required to make its own determination whether grounds for termination from the DUI court program existed before deciding whether to revoke her suspended sentence. She also argues that this Court can review the propriety of the DUI court's termination decision when reviewing the sentencing court's order revoking her suspended sentence. Finally, she argues that the sentencing court abused its discretion in revoking her suspended sentence. We affirm.
Factual and Procedural Background
[¶2.] On September 1, 2018, a bystander found Melissa Kari passed out by Covell Lake in Sioux Falls with her crying one-month-old son in an infant carrier beside her. She was highly intoxicated. The bystander shook Kari awake, and she stumbled toward an apartment building taking the infant carrier with her. Another bystander then saw Kari fall on top of the infant carrier, causing her son, who was still crying, to fall out. Kari grabbed him with one hand and put him back into the carrier.
[¶3.] Law enforcement was called, and officers made contact with Kari at her residence and with the two bystanders. Inside Kari's apartment, the officers observed empty beer cans scattered about and found Kari intoxicated. The officers determined that her son was not receiving the care he needed. Kari, who was on probation at the time, was arrested. At the jail, her preliminary breath test showed a blood alcohol content of .299 percent.
[¶4.] Kari was charged by complaint, then by grand jury indictment, with abuse or cruelty to a minor under seven years old. The State also filed a part II habitual offender information, alleging that Kari had four prior felony convictions: three DUIs and one possession of a controlled substance. Because Kari was on probation at the time of the most recent charge, the State filed a motion to revoke probation. The State and Kari thereafter entered into a plea agreement, whereby Kari would plead guilty to the current charge, and in exchange, the State would dismiss the motion to revoke and the part II. The State also agreed to recommend a suspended execution of sentence on the condition that Kari successfully complete the DUI court program. After accepting Kari's guilty plea, the circuit court (hereinafter "sentencing court") sentenced Kari to ten years in the penitentiary and suspended the execution of the entire ten-year sentence on multiple conditions, including that Kari be placed on supervised probation for five years, have no drug-or alcohol-related offenses, and successfully complete the DUI court program.
[¶5.] Kari began participating in the DUI court program in January 2019, and achieved some of her goals, but she also had setbacks. Her court services officer submitted reports to the DUI court documenting the dates and times alcohol was detected via Kari's SCRAM bracelet. The reports indicated that alcohol was detected on March 8-11, April 6, April 8-9, April 14, April 15-16, April 23, April 24, June 30, and July 1. The reports also related that Kari left the boundaries of Minnehaha County on April 15 without permission from her court services officer and refused to stop having contact with her boyfriend.
[¶6.] On July 23, 2019, Kari was given written notice of a recommendation to terminate her from the program. The grounds included: violating the program rules, concerns for public safety, being a threat to the integrity of the program, no longer working toward recovery, exhaustion of available treatment options, tampering with alcohol screening tests, and inability to pass alcohol screening tests.
[¶7.] The DUI court ordered Kari to be detained and held a termination hearing on August 6, 2019. At the hearing, the State presented expert testimony to establish that the SCRAM bracelets worn by Kari properly functioned and that the readings from those bracelets validly indicated alcohol consumption events. A court services officer also testified about Kari's violations and actions while she was a participant in the program.
[¶8.] Kari disputed that she had consumed alcohol on the dates alleged in the violation reports. She also disputed the validity of the SCRAM readings. Kari claimed that the SCRAM bracelets had not been timely calibrated, and as a result, they falsely reported alcohol consumption events. She presented expert testimony from Joe Anderson to challenge the validity of the SCRAM readings. Kari also presented evidence that she had a clean urine sample on July 3, 2018, via a test conducted by her court services officer and asserted this showed that the SCRAM reading reporting an alcohol consumption event on July 1 was wrong.
[¶9.] At the conclusion of the evidence, Kari personally addressed the DUI court. She maintained that she did not consume alcohol and requested an opportunity to prove that she has "fully surrendered to the program and to the judgment of the team." The DUI court judge then asked, "Is it your representation to myself and to the team that you have not consumed alcohol since you've been in the program?" Kari answered, "Yes." The judge further inquired, "What about the day before you went to Sisseton?" Kari replied, "I ended up drinking alcohol."
[¶10.] After conferring with the DUI court team, the judge concluded that she was reasonably satisfied based on the evidence presented that Kari had an alcohol consumption event as alleged. The judge noted concessions by Kari's expert witness that some of the readings on Kari's SCRAM bracelet between June 30 and July 1 and prior to June 30 were consistent with an alcohol consumption event, even if other factors affected the bracelet's performance. The judge found Kari in violation of the DUI court program conditions and terminated her from the program. The additional grounds specified in the termination order included that Kari was a threat to the integrity of the program, was no longer working toward recovery, and that available treatment options had been exhausted.
[¶11.] On August 13, 2019, the State filed a motion to revoke Kari's suspended sentence, alleging that she had violated a condition of her sentence by being terminated from the DUI court program. The sentencing court held a hearing to advise Kari of her rights and to discuss preliminary matters related to the motion to revoke. During this hearing, the State raised a concern about Kari's intent to challenge the propriety of the DUI court's termination decision, noting that the DUI court had already held hearings on the underlying violations. In the State's view, it would not be in the sentencing court's purview to review the decisions made by the DUI court. Counsel for Kari disagreed and argued that in light of State v. Stenstrom, 2017 S.D. 61, 902 N.W.2d 787, the sentencing court would have authority to "decide whether [Kari] did, in fact, violate the terms and conditions of the DUI court[.]" Kari's counsel requested a full evidentiary hearing and the appointment of an expert to testify at the hearing.
[¶12.] The sentencing court noted that while under Stenstrom, it does not have jurisdiction over the drug court's actions, Stenstrom also stated that the court may "[w]ithin the context of revocation" consider the actions of the drug court indirectly. See 2017 S.D. 61, ¶ 16, 902 N.W.2d at 791. The sentencing court therefore decided to permit Kari to present evidence at the revocation hearing related to her termination from the DUI court program.
[¶13.] At the beginning of the September 30, 2019 revocation hearing, the State requested that the court reconsider its decision to allow Kari to present evidence challenging the basis of the DUI court's termination decision. The State argued that Kari should not be given "a second bite at the apple" or be permitted to collaterally attack the DUI court's termination decision at her pending revocation hearing.
[¶14.] Kari, in response, asserted that because the only alleged violation in the motion to revoke was her termination from the DUI court program, the sentencing court must independently consider whether there were grounds to support the termination decision before deciding whether she violated a condition of her suspended sentence. Kari also noted that in Stenstrom, the Court determined that the defendant waived the right to contest a revocation because she had "declin[ed] to offer evidence or argument challenging the State's assertion that she violated the terms of her suspended sentence." See id. ¶ 16, 902 N.W.2d at 792. Based on this holding, Kari explained that she "obviously [couldn't] admit that she was terminated from the specialty court" because then "she would be essentially giving up her right to an appeal[.]"
[¶15.] The court agreed that the waiver holding in Stenstrom meant Kari could not admit to the alleged ground for revocation if she wanted to preserve her right to appeal the determination that she violated a condition of her suspended sentence. However, the court rejected Kari's argument that it could review the propriety of the DUI court's termination decision, noting that there is no statutory authority...
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