State v. Ross, 28407

• Court: Supreme Court of South Dakota
• Citation: 916 N.W.2d 141
• Decision Date: 25 July 2018
• Docket Number: 28407
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Shawn Raynard ROSS, Defendant and Appellant.

916 N.W.2d 141

STATE of South Dakota, Plaintiff and Appellee,
v.
Shawn Raynard ROSS, Defendant and Appellant.

28407

Supreme Court of South Dakota.

ARGUED ON APRIL 17, 2018
OPINION FILED July 25, 2018

MARTY J. JACKLEY, Attorney General, GRANT FLYNN, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

DOUGLAS N. PAPENDICK of Stiles, Papendick & Kiner, Mitchell, South Dakota, Attorneys for defendant and appellant.

SEVERSON, Retired Justice, and KERN, Justice.

¶ 1.] After the defendant pleaded guilty to third-degree burglary as part of a plea agreement, the court sentenced the defendant to five years in prison with three and one-half years suspended. The defendant left counsel's table accompanied by the sheriff. Before exiting the courtroom, the defendant made an obscene hand gesture toward the court. The court summoned the defendant back to counsel's table and resentenced him, imposing the entire five-year term. Before the court entered a judgment of conviction, the defendant filed a pro se motion for resentencing. The court entered a judgment of conviction but also granted a resentencing hearing. After the hearing, the court imposed a 60-month sentence with 40 months suspended. The defendant appeals, asserting that the sentencing court was without authority to increase his punishment beyond the court's initial sentence of five years with three and one-half years suspended. We affirm.

[916 N.W.2d 143

Background

¶ 2.] On February 17, 2017, the Brule County Grand Jury indicted Shawn Ross on one count of third-degree burglary in violation of SDCL 22-32-8 and one count of intentional damage to property in violation of SDCL 22-34-1(2). Ross pleaded not guilty. Thereafter, the State and Ross entered into a plea agreement. At a hearing on May 16, 2017, pursuant to the plea agreement, Ross pleaded guilty to third-degree burglary and agreed to pay $2,887.21 in restitution. The circuit court accepted Ross's plea and set a sentencing hearing for June 13, 2017.

[¶ 3.] At the sentencing hearing, Ross represented himself, although the sentencing court appointed advisory counsel. Before imposing sentence, the court relayed that it had previously accepted Ross's plea, found a factual basis to support the plea, and ordered a presentence investigation (PSI). The court asked Ross if he had reviewed the PSI. Ross replied that he reviewed it and had nothing to add or change. He also agreed that the PSI contained "all the information the [c]ourt needs to know in sentencing [him] today[.]" The State did not offer evidence in aggravation, and Ross did not present evidence in mitigation. Ross also chose not to make a statement. The transcript indicates that advisory counsel whispered to Ross. Thereafter, Ross requested and received credit for time served. Counsel again whispered to Ross, and Ross asked the court to waive the fine and costs, which the court granted.

[¶ 4.] After addressing those preliminary matters, the court asked whether either party was "aware of any just or legal cause why sentencing cannot be pronounced?" Ross and the State responded in the negative. The court continued:

All right. Mr. Ross, you have a pretty extensive record. You've done some federal time and some state time before. This again is another serious felony offense. So it requires some prison time, but it's not the crime of the century. And I don't look at it as such.

So what the [c]ourt's ordering is that due to your financial situation, I find hardship. There will be no fines or costs ordered.

I'm ordering you to serve five years in the South Dakota State Penitentiary, there to be fed, kept, and clothed in accordance with the rules governing said institution. I'm suspending three and a half years. I'm giving you credit for 133 days served.

I'm not too sure where your parole eligibility percentage falls. I suspect that you may be eligible for parole the day you step into prison. But you've been there before, so you probably know more about the 60-day minimum rule. And that's really what I'm looking at, if there's a few extras, that's fine. But I think that's an appropriate sentence.

I'm ordering that as a condition of your parole, you will pay restitution of $2,887.21 to the victim as laid out in the PSI. That'll be spread out in the judgment, Mr. Natvig, as far as the name.

You'll be remanded to the custody of the sheriff for execution of the sentence. You'll probably be transported later this week. And like I said, I don't think it's a very long sentence. I consider you to have substantially served the sentence already in the county jail, so I am not trying to add a bunch more on to that, okay?

Defendant : Yeah, well, I, I'll be doing way more time than that.

Court : Why?

Defendant : Because of the percentage of the, percentage of when you go to jail, when you go to prison you got—I have

[916 N.W.2d 144

two felonies, prior felonies. This will make it I'll have to do 45, 50 percent after that, credit after that time.

Court : So the year and a half—

Defendant : Yep.

Court : —and then credit? It's still not that long.

Defendant : I'm still going to do another six, seven months.

Court : Well. That's my sentence. That concludes the matter.

The transcript indicates that Ross left counsel's table. It is undisputed that Ross left counsel's table with the deputy sheriff.

¶ 5.] After Ross left counsel's table, counsel for the State and counsel advising Ross each asked the sentencing court a question. Although Ross was representing himself, counsel advising Ross asked the court, "Judge, is there a certain amount—never mind—probationary period, or?" The following exchange occurred:

Court : It's prison. It's for parole.

Counsel advising Ross : Parole, okay.

Court : Yep. It's five years total. They can cut him short if they decide that's necessary.

Counsel advising Ross : Okay. Thank you.

State : Court appointed attorney fees?

Court : He's ordered to repay the Court appointed attorney fees.

[¶ 6.] Thereafter, the court said, "What? Wait. Did you just flip me off? Stop." The following exchange transpired:

Deputy Sheriff : Ross (indicating).

Court : Stop. Did you just flip me off?

Defendant : I don't know what, you seen what I did.

Court : Did you? Sit down. Come back here and sit down (indicating). Right now. (The Defendant complies.)

Court : For the record, the [c]ourt observed Mr. Ross flip [it] the bird as he was leaving the courtroom. For that reason, the [c]ourt is modifying its sentence. The [c]ourt is reimposing the three and a half years suspended. It's five years in prison.

Defendant : Thank you. I'll get my day, same to you.

Court : For that I'm holding you in contempt of court. You'll be held in the Brule County jail for 30 days before you go and start your prison without any credit.

Defendant : Well give me a year, I don't care. Do what you got to do.

Court : Now it's 60 days in the Brule County jail before you start your prison sentence without any credit. Anything more to say?

Defendant : Uh-huh. I got a lot to say. You'll hear about it when I file, when I file my paperwork.

Court : File your paperwork.

Defendant : Uh-huh.

Court : That's it. Take him to jail immediately.

The deputy sheriff escorted Ross out of the courtroom.

[¶ 7.] On July 11, 2017, Ross, acting pro se, filed a motion to withdraw his guilty plea and/or appeal his sentence. He also filed a motion for resentencing. The court had not yet entered a judgment of conviction on the charge of third-degree burglary. The court also had not yet entered an order on the contempt charge. On July 20, the circuit court issued findings of fact and conclusions of law and an order of contempt. The court ordered that Ross "serve an additional 30 days in the Brule County Jail for contempt of court [in] accordance with SDCL 23A-38-1." The court also entered a judgment of conviction on the charge of third-degree burglary and imposed a five-year sentence.

[916 N.W.2d 145

¶ 8.] In regard to Ross's pro se motions, the court denied Ross's motion to withdraw his guilty plea. The court granted Ross's motion for resentencing. In the order granting the request to be resentenced, the court cited SDCL 23A-27-19 as authority to modify Ross's sentence. The court concluded that Ross "should be allowed another opportunity with substitute counsel to present his case for a possible different sentence." On August 14, 2017, the court appointed counsel to represent Ross.

[¶ 9.] On September 5, 2017, the court held a resentencing hearing. Ross appeared with court-appointed counsel. The court recognized that Ross had submitted a letter of apology and that the court accepted the apology. During the hearing, counsel for Ross argued that the sentencing court was without authority to increase Ross's sentence after the court had announced the sentence and remanded Ross to the custody of the sheriff. Therefore, counsel requested that the court reimpose the original sentence: five years with three and one-half years suspended. The court responded that it "thought about giving [Ross] the same time sentence" but determined that it would not. The court ordered that Ross serve 60 months in the penitentiary with 40 months suspended and credit for 194 days served. The court also ordered that Ross reimburse the court appointed attorney fees and pay restitution as previously ordered. The court entered an amended judgment of conviction imposing the same.

[¶ 10.] Ross appeals, and...