State v. Lohnes

Decision Date18 May 1978
Docket Number12090,Nos. 11926,s. 11926
PartiesSTATE of South Dakota, Plaintiff and Respondent, v. Dale Martin LOHNES, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Peter H. Lieberman, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on brief.

Ronald E. Brodowicz, Rapid City, for defendant and appellant.

CHRISTENSEN, Circuit Judge.

The appellant presents three questions for review on this appeal following the revocation of an order committing him to the state training school under SDCL 26-11-5 and the subsequent imposition of sentence to the penitentiary.

This case, but not the issues involved herein, was before this court in People In Interest of D. M. L., 1977, S.D., 254 N.W.2d 457, in which the court upheld the transfer of the appellant herein from juvenile court to the circuit court.

At arraignment in circuit court, the appellant waived his right to a jury trial. Thereafter, the appellant was tried and was found guilty of count one: assault with a dangerous weapon without the intent to kill, and count two: attempted rape. The court deferred sentencing until April 16, 1976, at which time the appellant presented mitigating evidence through three of his witnesses. The sentencing was postponed until April 19, 1976, when the court in disposition stated:

". . . it appearing to the satisfaction of the Court that the ends of justice and the best interests of the public will be served and the defendant is a proper subject therefore; it is hereby Ordered that Judgment of guilt not be entered and that the imposition of sentence herein be suspended pursuant to § 25-11-5 (26-11-5) and that the defendant be placed in the State Training School . . . , and be committed to the custody of the Superintendent thereof; and it is further Ordered that . . . (he) not be released from said facility on parole or otherwise, that he remain under the jurisdiction of the Circuit Court, Seventh Judicial Circuit; and it is further Ordered that upon . . . reaching his majority or upon completion of his training, that he be returned to this Court for sentencing . . . ."

Superintendent Green of the State Training School by letter reported to the court that the appellant had run away from the school on two occasions and expressed concern for the safety of the community.

The appellant was returned to the circuit court and a preliminary hearing was held on September 28, 1976, at which time, as he had been in the past, he was represented by the public defender's office. At the close of the hearing, the court found probable cause to hold the appellant for a revocation hearing. The appellant's attorney requested ten days to prepare for the revocation hearing because he had other cases and appeals pending. The trial judge gave him six days to prepare and stated that ten days would be too long to wait because persons of the appellant's age who are in jail deserve preference over appeals. At the hearing on October 5, 1976, defense counsel moved for a continuance again, both prior to the commencement of the hearing of testimony and at the conclusion of the state's case. Both motions were denied. The court found that the appellant had violated the terms and provisions of his order of commitment and revoked its order of commitment. The court then sentenced the appellant to serve five years in the South Dakota State Penitentiary on his conviction of attempted rape and to serve three years on his conviction of assault with a dangerous weapon without intent to kill. The court ordered that the sentences be served concurrently and that the appellant be given credit for time served in the amount of 112 days.

As previously indicated, the appellant's grounds for appeal may be divided into three general areas.

The first area is whether the trial court had jurisdiction to revoke "probation" under SDCL 26-11-5.

SDCL 26-11-5, insofar as pertinent here, provides:

"When a boy . . . under the age of eighteen years shall in any circuit court be found guilty of any crime excepting murder, the court may, if in its opinion the accused is a proper subject therefore, instead of entering judgment cause an order to be entered that such boy . . . be sent to the state training school . . . ." (emphasis supplied)

The wording of this statute is similar to SDCL 23-57-4 and SDCL 39-17-113 (repealed by SL 1976, ch. 158, § 42-43) which are commonly referred to as deferred judgment or suspended imposition of sentence statutes. Under each of these statutes, no judgment of guilt is entered and the defendant is either placed on probation under certain terms, conditions or provisions or, as in this case, sent to the State Training School. If the terms of the order of the court are satisfactorily completed or the best interest of the public as well as the defendant are met, the court may, in its discretion, discharge the defendant and dismiss the charge. The court does not lose its jurisdiction of the defendant under any of the above statutes.

The appellant argues that SDCL 24-9-14 is applicable and that because the Board of Charities and Corrections made no finding that the appellant was unruly or incorrigible or that his "presence . . . (was) manifestly and persistently injurious to the welfare of the school" and entered no subsequent order returning him to the court, the court is without jurisdiction. Superintendent Green testified: That the appellant ran away on two occasions; that his behavior was satisfactory but that he was lazy in attempting to improve himself; that the psychological evaluation showed him to be dangerous under certain circumstances; and that, in his opinion, the State Training School was not a secure enough facility to hold and treat the appellant over a long period of time. SDCL 24-9-14 gives the Board of Charities and Corrections the power and authority to order the removal of a child if that child is unruly, incorrigible or injurious to the welfare of the rest of the student body and does not affect the jurisdiction of the court. The Board must be concerned with the welfare of other students entrusted to their charge. Requiring an order of the Board to remove a child from the State Training School would interfere with the court's jurisdiction over the appellant and its ability to "protect society and improve chances of rehabilitation." Morrissey v. Brewer, 1972, 408 U.S. 471, 480, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484, 493. The court, as long as it retains jurisdiction, has the authority to remove the child by complying with the requirements of due process.

The second ground is whether the appellant received due process in the revocation proceedings.

Under Morrissey v. Brewer, supra, and Gagnon v. Scarpelli, 1973,411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, a probationer is entitled to a two-step due process proceeding before his probation may be revoked. The first step a probable cause hearing to determine if there are reasonable grounds to believe that probation violations have occurred and to hold him for further hearing is not involved here. The appellant does not contest the fact that he escaped twice and where violations are admitted, no probable cause hearing is necessary. Morrissey v. Brewer, supra, 408 U.S. at 489, 92 S.Ct. at 2609, 33 L.Ed.2d at 499. Appellant raises no questions about the propriety of the hearing he received.

The appellant complains that he was denied the right to present mitigating evidence by the court's refusal to grant him a continuance. It is the law that the granting of a continuance is within the discretion of the trial court, Farmers and Merchants State Bank v. Mann, 1973, 87 S.D. 90, 203 N.W.2d 173, which will not be reversed except upon clear abuse of discretion. State v. Pickering, 1976, S.D., 245 N.W.2d 634. Moreover, SDCL 15-11-7 requires that an affidavit be filed to support a motion for continuance on account of the absence of a witness. No such affidavit was filed in this case. Furthermore, the court found the witness' testimony not relevant in view of the fact that his testimony was not mitigating in nature; nor was the testimony of such witness material to the case. See State v. Davies, 1914,33 S.D. 243, 145 N.W. 719, 720; State v. Sonnenschein, 1916, 37 S.D. 139, 156 N.W. 906, 908-909; State v. Johnson, 1955, 76 S.D. 37, 71 N.W.2d 733, 735; State v. O'Connor, 1969, 84 S.D. 449, 173 N.W.2d 48, 49; State v. Dowling, 1973, 87 S.D. 532, 211 N.W.2d 572, 573; State v. Barcley, 1975,88 S.D. 584, 225 N.W.2d 875, 878.

The appellant also alleges error in the court's refusal to appoint a psychiatrist so as to enable the court to consider the "most advantageous rehabilitation program" for the appellant. In this connection, the appellant had undergone a psychiatric evaluation some months earlier and the court had the benefit of the testimony of the psychiatrist and other witness given somewhat over five months prior to the day of sentencing. State v. Sahlie, 1976, S.D., 245 N.W.2d 476, 480, sets forth the guidelines for determining when court-appointed experts are essential to the defense. The court in this case found that a court-appointed expert was not needed or necessary and that his testimony would be cumulative because of the prior hearings before the court.

Morrissey v. Brewer, supra, 408 U.S. 471, at 489, 92 S.Ct. 2593, at 2604, at 33 L.Ed.2d 484, 499, sets forth the minimum requirements of due process for revocation hearings. They are:

"(a) written notice of the claimed violations . . . ; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body . . . ; and (f) a written statement by the factfinders as to the evidence...

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